Discussion Points for Punto Legal-June 1, 2016

1. I-601A Provisional Waiver. We pried some information from the immigration service about the provisional or “stateside” waiver program. This program began in January 2013. It permits immigrants who know they are going to get hit with an unlawful presence bar to get their waiver before they travel to their country of origin-Ciudad Juarez in the case of Mexicans. The program is supposed to be expanded to spouses and children of residents this year, but this has not yet happened. During the life of the program, over 137,000 spouses of U.S. citizens have applied. The program has gotten bigger numbers every year since 2013. The overall approval rate over the life of the program is 74%. This, of course, means the denial rate is 26%.

If you submit an I-601A waiver request and then get a request for evidence, you should see an immigration attorney if you don’t already have one. Looking at the cases where a request for evidence was sent, only 62% were ultimately approved. In other words, a request for evidence is a signal that your case may have problems.

At Ted Hess & Associates, our approval rate is 97%.

2. Abandonment of Permanent Residence. If you are a resident and have been gone from the United States more than one year, you can expect to be questioned about whether you have abandoned your residency. How long you have been outside the U.S. is a major factor, but it is not the only one. Immigration authorities will consider your intent; any employment abroad; U.S. business affiliations; ownership of residence or property holdings in the United States; payment of U.S. taxes; length of time in the United States; community ties developed before the departure; maintenance of a bank account, and U.S. residence of other immediate family members during this period.

Evidence that the Lawful Permanent Resident (LPR) has abandoned residency can include extended or frequent absences from the United States; disposing of property or terminating a job in the United States before leaving; family, property, or business ties all located abroad; working for a foreign employer, voting in a foreign election, and failure to file U.S. income tax returns.

Employment outside the United States by a United States employer would not likely be considered evidence of abandonment of LPR status.

If you think you may be outside the U.S. for more than one year, get a re-entry permit before you travel. This reentry permit may be obtained by filing Form I-131 with the USCIS before leaving. You can stay outside the U.S. for up to two years and not be regarded as having abandoned your residency with a re-entry permit.

Permanent resident aliens are entitled to a hearing as to whether they have abandoned their LPR status when returning from a lengthy absence. If it is requested, they will be paroled into the country for that purpose. The government has the burden of proving by clear, unequivocal, and convincing evidence that the LPR’s status has changed. In those cases, an immigration judge will hear testimony and weigh the evidence as to whether abandonment has occurred. An LPR retains that status until a formal determination has been made.

If you have been outside the U.S. for over one year, you can simply argue your case to Customs and Border Protection if they raise a question of abandonment. You can also file Form DS-117, Application to Determine Returning Resident Status, along with a fee of $275, with the U.S. consulate.

The consulate will conduct an interview and make a determination as to whether the LPR has abandoned resident status.

3. Immigration Application Fees. The Department of Homeland Security proposed a new fee schedule for government immigration forms. Overall, the fee increase is 21%, but the application for citizenship will cost less. Here are some examples of the price increases: The I-485 application to fix your papers in the U.S. will rise from $1,070.00 to $1,140.00. The advance travel document will rise from $360.00 to $575.00. If you are thinking about applying for an immigration benefit, you will save money if you move ahead now-before the prices go up.